MARION S. BARRY, ETC., ET AL., PETITIONERS V. UNITED STATES OF
AMERICA, ET AL.
No. 87-1150
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-78a) is reported
at 813 F.2d 412. A subsequent opinion of the court of appeals denying
a petition for rehearing (Pet. App. 79a-123a) is reported at 826 F.2d
73. The order of the court of appeals granting rehearing en banc
(Pet. App. 167a-168a) is reported at 833 F.2d 367; the opinion and
order of the court of appeals vacating the order in which rehearing en
banc was granted (Supp. Pet. App. 1a-3a) is unreported. The opinion
of the district court (Pet. App. 124a-156a) is reported at 606 F.
Supp. 1082. The opinion of the district court granting a motion for a
stay pending appeal (Pet. App. 159a-163a is unreported.
JURISDICTION
The judgment of the court of appeals was initially entered on
February 27, 1987. A timely petition for rehearing was denied on
August 14, 1987 (Pet. App. 166a). On October 26, 1987, the Chief
Justice extended the time for filing a petition for a writ of
certiorari to and including January 11, 1988 (Pet. App. 169a). On
November 20, 1987, the court of appeals granted a suggestion for
rehearing en banc (Pet. App. 167a-168a). On January 11, 1988,
petitioners filed both a petition for a writ of certiorari and a
motion that the Court defer consideration of the petition and grant
leave for the filing of a supplemental petition in light of the en
banc decision of the court of appeals. On March 4, 1988, the court of
appeals vacated its earlier order granting rehearing en banc. A
supplemental brief in support of the petition for a writ of certiorari
was then filed on March 16, 1988. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the hiring portions of the District of Columbia Fire
Department's now-superseded affirmative action plan, which created a
racial quota for selecting entry-level firefighters, violated Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
STATEMENT
1. In October 1980, two black firefighters of the District of
Columbia's Fire Department filed complaints with the District of
Columbia's Office of Human Rights (OHR) (Pet. App. 3a). The
complaints alleged that, beginning in October 1979, the Fire
Department had engaged in racially discriminatory acts, including the
use of unvalidated tests for the hiring of entry-level firefighters
(ibid.). In June 1981, without the benefit of an evidentiary hearing,
the Director of OHR issued a "Summary Determination" in which he found
that a prima facie case of discrimination existed with respect to the
Fire Department's recruitment, hiring, and promotion practices
(ibid.). In August 1981, the OHR Director ordered that 60 of the next
70 entry-level firefighter positions be filled with minorities
(ibid.). The Fire Department, denying that it had committed any
discrimination whatsoever, appealed this ruling, and an appellate
officer remanded the complaints for reconsideration (id. at 4a).
On remand, after holding 50 days of adjudicatory hearings,
throughout which the Fire Department adamantly denied having committed
any discrimination whatsoever, an OHR Hearing Examiner rejected the
bulk of the complaining parties' allegations (Pet. App. 4a-8a). The
Examiner found that the complainants had failed to show that the job
qualifications established for entry-level firefighters were either
intentionally discriminatory or had an adverse impact on blacks; and
he further found that there was no evidentiary basis for the claim
that the Fire Department had discriminated against blacks in
recruiting or that its promotion process was infected by
discrimination (Pet. App. 4a-8a & n.5). The Examiner did note that
the unvalidated entry-level written examination which the Fire
Department began using in November 1980 would have had an adverse
effect on blacks had it been used as a rank-ordering device (id. at
5a). But he found that, except for a short period in early 1981, the
Fire Department had used the test only as a pass-fail screening
device, with the passing score set at a level one would reasoning
expect to achieve by answering the questions at random (id. at 5a, 7a,
8a-10a). /1/ Finally, the Examiner found (id. at 7a) that the Fire
Department had failed to achieve a racial composition in its workforce
corresponding to the racial composition of the adult population of the
District of Columbia and, therefore, that it had failed to comply with
D.C. Law 1-63 (D.C. Code Ann. Sections 1-507 to 1-514 (1987)) which
mandates proportional representation of "all groups" within the
District of Columbia's working age population in all employment
categories.
Based on these findings, the Examiner recommended that the Fire
Department validate its entry-level test; establish written
procedures for investigating the background of applicants to ensure
that black applicants are processed at the same rate as white
applicants; exhaust the eligibility list established as a result of
the examination administered in 1980, assigning to all hired from that
list the same date of hire; and adopt and implement an affirmative
action plan (Pet. App. 7a-8a, 10a-13a, 128a-129a). The OHR affirmed
the Examiner's recommendations in all material respects and, in
November 1983, issued an order to this effect (id. at 12a-13a).
Neither the Fire Department nor the complaining parties sought review
(id. at 13a).
2. During the course of the OHR proceedings, the Fire Department
continued its aggressive recruitment of minorities (Pet. App. 13a).
Thus, in 1982, 67.5% of its new hires were black; in 1983, 80.5% of
its new hires were black; and, in 1984, 78.6% of its new hires were
black (ibid.). Nevertheless, in March 1984, because the Fire
Department planned to administer its entry-level examination again,
the Progressive Fire Fighters Association and four minority applicants
filed suit to enforce the OHR's order and to require the Fire
Department to eliminate the racial disparities that allegedly existed
in the firefighter ranks (id. at 14a). Two months later, the district
court entered a consent decree in which the Fire Department agreed to
validate an entry-level test, to submit a proposed affirmative action
plan to the court, and to hire from the eligibility list derived from
the 1984 examination only after exhausting the eligibility list
derived from the 1980 examination (ibid.). The consent decree made
clear, however, that it was "'neither an admission nor a finding that
the (Fire Department) ha(d) violated any law or regulation regarding
prohibited discrimination'" (ibid.).
In February 1985, the Fire Department submitted a proposed
affirmative action plan to the court (Pet. App. 14a). It addressed
both hiring and promotion issues (id. at 14a-15a). With respect to
hiring, it provided, among other things, that each entering class of
firefighters would be at least 60% black (id. at 15a n.14).
3. In March 1985, eight nonminority firefighters and their union,
Local 36, International Association of Firefighters, filed suit in the
district court, alleging that the promotion provisions of the plan
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq., and the Due Process Clause of the Constitution (Pet. App. 15a).
Shortly thereafter, the United States filed a similar suit,
challenging the hiring as well as the promotion provisions of the plan
(ibid.). The district court consolidated the three cases (id. at
129a-131a).
In April 1985, on the parties' cross-motions for summary judgment,
the district court sustained the hiring provisions against statutory
and constitutional attack and struck down the promotion provisions as
violative of Title VII (Pet. App. 124a-156a). The court found (id. at
131a-132a, 140a-144a) that the Fire Department had been segregated in
the 1950s; that some "vestiges" of this past discrimination remained;
that the 60% hiring quota was "reasonable" because over 60% of the
persons taking the unvalidated 1984 examination were black; and that
white applicants were not "'unnecessarily trammel(led)'" (id. at 143a
(citation omitted) by the quota because they had little expectation of
or entitlement to a job with the Fire Department. Thus, although it
was "not comfortable with (the plan's) racially based
discriminations," and stated that "in this case perhaps a strength or
agility test might be less objectionable," the court approved the
hiring provisions of the plan (id. at 15a). But it found that the
promotion provisions "'unnecessarily trammel(led)' upon the rights and
interests of the white firefighters, who are in line for promotions,
by advancing blacks based solely on their race over more qualified and
more senior white firefighters" (id. at 152a). Finally, by order of
April 26, 1985 (id. at 159a-163a), it ruled that the Fire Department
should be permitted to hire entry-level personnel pursuant to the plan
"until or unless modified by a higher court" (id. at 163a).
4. On appeal by the United States, /2/ a divided panel of the court
of appeals reversed (Pet. App. 1a-78a). Drawing upon cases decided
under both Title VII and the Constitution (id. at 19a-27a), the court
concluded that "remediation of present discrimination (or extant
results of its insidious prior operation) is the absolutely
indispensable element of the legality of remedies which differentiate
human beings on the basis of race" (id. at 27a). The court further
noted (id. at 28a) that "the law contains yet another hurdle before a
race-preference program may properly be employed: the remedy crafted
to address a violation must be tailored to fit that violation." The
court concluded that the Fire Department had "failed to establish the
requisite predicate of discrimination and did not consider, let alone
employ, alternatives to its race-preference plan" (id. at 3a).
With respect to the predicate of discrimination, the court found
that "the racial preference plan had nothing to do with 'break(ing)
down old patterns of racial segregation and hierarchy'" (Pet. App.
32a, quoting Steelworkers v. Weber, 443 U.S. 193, 201, 208 (1979)).
The court reasoned (Pet. App. 34a-35a) that, since 1981, the average
percentage of blacks filling entry level positions had far exceeded
their proportion -- 29.3% -- within the relevant job market, the
Washington Metropolitan area, /3/ and had even exceeded each year "the
74.35 black percentage in the 1980 applicant pool." "Since 1981 * * *
an average of no less than 75.5 percent of those hired each year have
been black" (id. at 33a). Even "between 1969 and 1980, an average of
41.8% of those hired by the Fire Department each year were black" (id.
at 32a). In light of these statistics, the court concluded (id. at
32a-33a) that there was no basis for finding that the affirmative
action plan was "designed to dismantle the structure of
discrimination" (id. at 36a).
The court also found that the Fire Department had failed to tailor
its affirmative action remedy to the only discrimination-related
concern articulated by the Department -- its concern to avoid the
adverse impact of a rank-order use of its hiring test (Pet. App.
36a-40a). The court reasoned that the Fire Department had been
"unimaginative in the extreme in seeking to avoid a regime of racial
preference," observing that the Fire Department had refused even to
consider using tests employed by fire departments in other
jurisdictions (id. at 38a-39a). It stated that the Department "could
have exhausted the 1984 eligibility list" (id. at 39a), or "moved in
the intervening years to validate the FST for rank-order use (as the
experts at OPM thought had already been done as of 1979)" (ibid.).
Or, it added, the Fire Department "could have ceased to use the test,
especially since * * * the passing score was set at such a meek and
lowly level that the exam results,, at least in the lower strata,
would seem virtually meaningless" (ibid.). The court thus concluded
(ibid.) that the District's affirmative action plan violated Title VII
and the Due Process Clause because, "even assuming arguendo that the
District's hiring procedures constituted a 'violation' necessitating
remedial action, its race-based hiring methods were not narrowly
tailored to accomplish its remedial purposes."
Finally, the court addressed the question "why the District of
Columbia would embark upon this course" and found the answer in "(the
Fire Department's) effort to achieve a strict racial balance in its
workforce in compliance with" D.C. Law 1-63 (D.C. Code Ann. Section
1-507 (1987)) (Pet. App. 40a-41a). That statute requires every agency
in the District of Columbia government to have, as a hiring goal,
"full representation, in jobs at all salary and wage levels and
scales, in accordance with the representation of all groups in the
available work force of the District of Columbia, including, but not
limited to, Blacks, Whites, Spanish-speaking Americans, Native
Americans, Asian Americans, females and males" (id. at 41a). The
court concluded that "the statutory goal of a racially balanced
workforce is not only an inadequate ground upon which to support the
(affirmative action plan), * * * (it) is a ground that stands
condemned by Title VII and the higher law of the Constitution" (id. at
43a).
5. On petition for rehearing, the divided panel ruled that the
decision in Johnson v. Transportation Agency, No. 85-1129 (Mar. 25,
1987), did not lead to a different result (Pet. App. 79a-123a). The
court reasoned (id. at 82a-83a) that, in requiring affirmative action
plans to be justified by the existence of a "manifest imbalance"
reflecting underrepresentation in "traditionally segregated job
categories," the Court in Johnson "was * * * clear in relating the
existence of employment discrimination (and the goal of eliminating
its effects) to the bedrock Congressional purposes informing Title
VII" (id. at 83a). See also id. at 94-95a. After noting that its
decision was grounded solely on Title VII (id. at 86a), /4/ the court
reviewed the racial composition and hiring patterns of the Fire
Department (id. at 86a-90a) and concluded that "there is no manifest
imbalance in the District's Fire Department; indeed, there is
manifestly no imbalance at all" (id. at 90a). Rather, the court said,
"(i)t could hardly be plainer that the District's Fire Department is
not burdened with the clogged channels of opportunity that
characterized the employment situation in Johnson * * *" (id. at
90a-91a). It then turned to the "tailoring" issue and noted that,
whereas Johnson involved an affirmative action plan that set aside no
specific numbers of positions for minorities or women and that merely
authorized consideration of ethnicity or sex as one factor in
evaluating qualified candidates, the Fire Department's plan used race
as a "hardcore, cold-on-the-docks quota," and "nothing less" (id. at
91a-92a). For these reasons, the court concluded (id. at 94a-97a)
that the decision in Johnson did not require a change in either the
legal methodology employed by the panel majority or the conclusion it
had thereby reached.
ARGUMENT
The decision below is correct. It does not conflict with any
decision of this Court or of any other court of appeals. Accordingly,
review by this Court is not warranted.
1. The Fire Department's affirmative action plan plainly does not
seek to eliminate a "manifest imbalance" in a "traditionally
segregated job category." While the Fire Department was segregated in
the 1950s, an average of over 40% of those hired as firefighters by
the Fire Department since 1969 have been black; and roughly 37% of
the present employees of the Fire Department are black (Pet. App. 107a
n.9 (Silberman, J., concurring)). Therefore, there is no basis for
suggesting either that the entry-level firefighter position continues
to be reserved for white employees, or that it is so perceived. Cf.
Steelworkers v. Weber, 443 U.S. at 198 n.1; Johnson v. Transportation
Agency, slip op. 15-16. Moreover, whether the firefighter position is
correctly characterized as a "traditionally segregated job categor(y)"
or not, there plainly was no imbalance, must less a "manifest
imbalance," in that job category at the time the Fire Department put
this affirmative action plan into effect. The 37% black population
within the Fire Department compares very favorably to the 29% black
population in the greater Washington metropolitan area. /5/ And while
the Fire Department's applicant pool was about 74.53% black in 1980
and 64.6% black in 1984, the Fire Department hired on average at least
75% blacks for the firefighter positions that opened up in all years
after 1981. /6/ Thus, the court below quite correctly held (Pet. App.
86a-91a) that there was no "manifest imbalance" in the firefighter
position that could justifiably be corrected by a racial quota. /7/
2. Contrary to petitioners' assertion (Pet. 12-14), Johnson does
not hold that race-conscious employment action may be taken in the
absence of any predicate of past discrimination. On the contrary, the
Court in Johnson said (slip op. 9-10) that its judgment "must be
guided by (its) decision in (Steelworkers v.) Weber, (433 U.S. 193
(1979))," which found that, where blacks have been historically
excluded from a position, "taking race into account (is) consistent
with Title VII's objective of 'break(ing) down old patterns of racial
segregation and hierarchy'" (slip op. 10 (citation omitted)). The
Johnson Court then determined (id. at 13, 14) that the affirmative
action plan at issue there was prompted by "concerns similar to those
of the employer in Weber" -- specifically, the elimination of "the
effects of employment discrimination." And while the Court said that
an employer need not produce the evidence necessary to support a prima
facie case of discrimination against itself (id. at 14), it reiterated
(id. at 19) that the employer must produce evidence that its plan
"satisfies the first requirement enunciated in Weber" -- i.e., that
the plan aims to break down old and continuing patterns of racial
segregation and hierarchy, Johnson thus reaffirms the requirement of
prior, persisting exclusion or segregation as a necessary predicate to
race-conscious employment action.
3. Petitioners similarly err in suggesting (Pet. 13-14) that, under
Johnson, an employer may undertake race-conscious action without
tailoring its remedial action to the manifest imbalance identified,
including consideration of race-neutral alternatives. Johnson makes
clear that an affirmative action plan must not "unnecesarily trammel()
the rights of male (or nonminority) employees or create() an absolute
bar to their advancement" (slip op. 19). In doing so, Johnson relies
heavily on Justice Powell's opinion in University of California
Regents v. Bakke, 438 U.S. 265 (1978), which expressly warns that
race-conscious action is appropriate only where it is properly
tailored to the nature of the problem it seeks to correct. And, as
Justice Powell has explained elsewhere, any legitimate effort at
tailoring of remedies requires a consideration of alternatives --
including non-race based ones. See Fullilove v. Klutznick, 448 U.S.
448, 510-511 (1980) (Powell, J., concurring). That remedial action is
voluntary should not and does not change the degree of care that the
law requires of the employer. /8/
Here, the Fire Department did not even consider using nonracial
means -- such as recruitment through a cadet program, development of a
valid test, or use of a physical agility requirement -- to hire
firefighters. Cf. Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC,
No. 84-1656 (July 2, 1986), slip op. 23 (plurality opinion) (normal
remedies for employment discrimination are not race-conscious). Far
from the situation in Johnson where sex was used as a "plus-factor" in
choosing among closely competing candidates (see Johnson v.
Transportation Agency, slip op. 18-19), here race was the only factor
used, apart from the requirement of achieving an examination score
equivalent to what can be achieved by random choice. Blind reliance
on race fails Johnson's requirement that an employer using an
affirmative action plan tailor its race-conscious action to ensure
that the rights of nonminorities are not unnecessarily trammelled.
4. Petitioners appear to contend (Pet. 14-17) that the Fire
Department's hiring quota was designed to "remedy" an arguable
disparate impact arising from the employment tests it has
administered. But, with one minor exception, /9/ the Fire Department
never employed these tests as rank-ordering devices -- precisely
because it wanted to increase the representation of minorities in its
ranks. See Pet. App. 8a. Thus, as petitioners themselves maintained
throughout the administrative proceedings giving rise to this case
(see id. at 5a), there is no basis for suggesting that a prior history
of discrimination can be attributed to the use of these tests. /10/
In any event, petitioners did not properly tailor their so-called
remedial action to address their allegedly discriminatory tests. On
the contrary, they simply adopted a bottom-line quota -- providing
that, in hiring firefighters, the Fire Department must hire a
precentage of blacks equal to the percentage of blacks that passed
their unvalidated examination -- in order to achieve compliance with
District of Columbia law. Such actions unlawfully discriminate
against all individuals protected by Title VII -- white and black.
See Connecticut v. Teal, 457 U.S. 440 (1982); Johnson v.
Transportation Agency, slip op. 18.
5. As petitioners note (Pet. 10), the affirmative action plan in
issue here has expired and been superseded by a racially-neutral
hiring plan that petitioners themselves have proposed and that the
United States has accepted. /11/ While this action does not moot the
case, at least for the reason that claims for monetary relief may
still turn upon it (see Firefighters Local No. 1784 v. Stotts, 467
U.S. 561, 571 (1984)), it clearly diminishes any importance that the
case might otherwise have had.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
WM. BRADFORD REYNOLDS
Assistant Attorney General
DAVID K. FLYNN
ROBERT J. DELAHUNTY
Attorneys
MAY 1988
/1/ Prior to January 1980, the federal government was responsible
for testing at the entry level of the Fire Department (Pet. App. 8a).
The federal government -- specifically, the Civil Service Commission
and, after 1978, the Office of Personnel Management (OPM) -- had
relied on "Test 21," the written test that this Court in Washington v.
Davis, 426 U.S. 229 (1976), found to be valid as applied to
entry-level hiring in the District of Columbia's Police Department
(Pet. App. 8a). At the request of the Fire Department, however,
beginning in the early 1970's, the registers of those passing Test 21
were exhausted before a new examination would be administered. Thus,
in order to avoid the disparate effect that Test 21 had on minority
candidates, the test was essentially used as a screening device,
rather than a rank-ordering device, for the hiring of entry-level
firefighters (ibid.).
Beginning in the 1980s, when the Fire Department took over the
responsibility for entry-level testing, OPM and the Fire Department
jointly developed and implemented an examination that they believed
would better predict job performance -- the Firefighters Service Test
(FST) (Pet. App. 8a). OPM and the Fire Department developed the FST
in accordance with the EEOC's Uniform Guidelines on Employee Selection
Procedures, 29 C.F.R. 1607.4(D), and thus believed that it was a
valid, nondiscriminatory selection device, even if used for
rank-ordering purposes (Pet. App. 8a-9a). After using the FST as a
rank-ordering device for a brief period in January 1981, however, the
Fire Department's experts advised it that the FST might not be valid,
and the Fire Department promptly ceased using the FST as a
rank-ordering device (id. at 9a-10a, 12a n.12).
/2/ The Fire Department did not appeal the invalidation of the
promotion provisions of the plan.
/3/ Until the District of Columbia enacted a law in 1980 requiring
new hires to become District residents within six months (see D.C.
Code Ann. Section 1-608.1(e)(1) (1987)), the Fire Department had
extensively recruited firefighters from this greater metropolitan area
(such that about half of its entry-level firefighters were
suburbanites). Even after 1980, the Fire Department continued to hire
firefighters in substantial numbers from the surrounding suburbs. See
Pet. App. 34a, 90a n.8.
/4/ The court elected not to resolve the issue, raised sua sponte
by the court following oral argument on the rehearing petition,
whether the United States has standing to challenge the
constitutionality of the affirmative action plan. Accordingly, it
declined to rule on the constitutional challenge to the plan (Pet.
App. 84a-86a). Judge Silberman, while joining the opinion of Judge
Starr for the court, concluded for himself that the United States does
have such standing, and also concluded that the affirmative action
plan is invalid on constitutional as well as Title VII grounds (id. at
98a-111a).
/5/ In originally concluding that a "manifest imbalance" existed,
Judge Mikva argued in dissent below (Pet. App. 65a) that the 37%
representation of blacks in the Fire Department should be compared to
the working age population of the District of Columbia, which is 70%
black. But, as the panel majority recognized (id. at 88a-90a, 107a &
n.9), the Fire Department's past and present recruitment practices,
which have successfully reached far outside of the District, indicate
that the greater Washington metropolitan area is the far more accurate
benchmark. See Stone v. FCC, 466 F.2d 316, 322 (D.C. Cir. 1972)
(greater Washington SMSA data, not District data alone, is the proper
benchmark for determining whether radio station discriminated in
hiring). In any event, it does not appear that the definition of the
most appropriate geographic market for statistical comparisons with
respect to the hiring of firefighters for the District of Columbia
raises a question worthly review by this Court.
In this dissent to the denial of rehearing, Judge Mikva further
suggested that (Pet. App. 118a) a "manifest * * * imbalance" existed
between the percentage of blacks in the Fire Department and the
percentage of blacks in the overall workforce of the District of
Columbia government. Whether such an imbalance exists or not, this
comparison is not legally relevant. The work force of the District of
Columbia government is not the labor pool from which entry level
employees of the Fire Department are drawn, and, therefore,
comparisons of the racial compositions of the two work forces proves
nothing about discrimination or imbalances in traditionally segregated
job categories. See United States v. Town of Cicero, 786 F.2d 331,
335-337 (7th Cir. 1986) (Posner, J., concurring and dissenting).
/6/ As Judge Silberman noted (Pet. App. 107a n.9), the suggestion
of Judge Mikva (id. at 120a) and petitioner (Pet. 17) that a "manifest
imbalance" may be found in the disparity between the representation of
blacks in the work force (37%) and the representation of blacks in the
1984 applicant pool (64.6%) muddles "stock" and "flow" statistics.
Indeed, under this reasoning, an employer can create an artificial
justification for race-conscious action simply by increasing the flow
of minority applicants through vigorous recruitment methods.
/7/ Petitioners' off-handed suggestion (Pet. 11 n.5) that, in
making this judgment, the court below improperly overturned the
findings of fact by the district court is wrong. The district court
decided this case on cross-motions for summary judgment based on
stipulated facts. The district court was thus in no position to, and
did not, make any findings of fact. Concomitantly, in reviewing the
district court's judgment, the court of appeals was entitled --
indeed, required -- carefully to review the summary judgment record
and to apply the law to that record.
Petitioners further err in suggesting (Pet. 17-18) that the
decision below conflicts with United States v. County of Fairfax, 629
F.2d 932, 940 (4th Cir. 1980), cert. denied, 449 U.S. 1078 (1981). In
that case, the Fourth Circuit held that statistics concerning
representation of minorities in the greater metropolitan Washington
area did not provide an appropriate benchmark for assessing whether
Fairfax County's local government had engaged in discrimination.
Nothing in that holding addresses, much less decides, whether such
statistics provide an appropriate benchmark for assessing whether the
District of Columbia government has engaged in discrimination -- and
there is no reason to assume that these labor markets are in fact
symmetrical (and, indeed, common experience teaches that more suburban
dwellers will work in the city than vice versa). In any event, the
Fourth Circuit held only that the district court's judgment approving
use of applicant flow figures in that case was not clearly erroneous;
it did not hold that applicant flow figures must always be used.
/8/ Petitioners' assertion (Pet. 14) that nonminority candidates
have no "legitimate expectations" of being evaluated without regard to
their race because the Fire Department has failed to develop a
nondiscriminatory test is inconsistent in principle with this Court's
decision in Connecticut v. Teal, 457 U.S. 440 (1982), and stands Title
VII's nondiscrimination guarantee on its head.
/9/ As to this exception, the Fire Department took immediate steps
to remedy the effects of that action long before it proposed the
affirmative action plan at issue in this case. See Pet. App. 33a
n.29.
/10/ By contrast, the courts have found marked animus against
nonminorities and males in the upper levels of the Fire Department in
recent years. See Pet. App. 105a, citing Bishopp v. District of
Columbia, 788 F.2d 781, 786-789 (D.C. Cir. 1986); Dougherty v. Barry,
607 F.Supp. 1271, 1284 (D.D.C. 1985); McCormick v. District of
Columbia, 554 F.Supp. 640 (D.D.C. 1982).
/11/ Under the terms of the new plan, selection of entry-level
firefighters will be made solely on the basis of a "cadet program,"
until such time as the petitioners develop a valid, nondiscriminatory
selection device. Selection apparently will also involve exhaustion
of the 1984 eligibility list.